Policy | Security | Investigation

agreement

January 08, 2010

Investigators engaged in electronic discovery should be mindful of posted terms, conditions, EULAs, labels, notices, warnings, banners, contracts, agreements and no-trespassing signs. They can have legal effect in the electronic world, and may be binding on an investigator who encounters them.

While off-duty, restaurant employees maintained a password-protected MySpace forum, labeled as “talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in.” Pietrylo created and maintained the forum, explicitly designated it as “invitation only,” and distributed passwords to a limited number of employees. One of these employees gave her password (whether voluntarily or otherwise is unclear) to restaurant management. Management accessed the forum, and discovered . . .

March 27, 2009

New financial regulations, when coupled with advancing technology, will force the retention of massive electronic commerce records. Hear what the authorities are saying about the regulation of financial derivatives:

Second: Former SEC Chairman Harvey Pitt recommends much new record-keeping and reporting by entities like hedge funds that have not previously been regulated. “Former SEC chief says gather, share more data,” USA Today, 3/27/09 p3B.

Third: To prevent more of the “toxic” assets poisoning today’s financial system, Treasury Secretary Geithner says, “We will require that all non-standardized derivatives contracts be reported to trade repositories and be subject to robust standards for documentation and confirmation of trades, netting, collateral and margin practices, and close-out practices.”

What’s the definition of a “non-standardized derivatives contract?” It’s really just a negotiated contract that allocates risk between two or more parties. It can cover most any kind of risk or possibility, from the risk of a lawsuit to the potential for rain in the Australian Outback. (A derivative can even be "embedded" in an routine commercial contract, such as a sale agreement or a mining agreement.) The scope of this field is breathtaking. Non-standardized derivatives contracts have become a very large, thinly-monitored part of our financial world.

So what’s a complete record of one of these derivatives contracts look like? Would it be a stack of paper, stapled together, with signatures at the end? It could indeed be such a stack of paper.

But . . . let’s think deeper about how contracts are documented these days. As the methods for written business communication – letter, telex, fax, e-mail, instant message and so on -- have grown progressively more cheap and easy, the challenges for documenting complex contracts have risen.